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More campaign Facebook fails

The Nevada Commission on Judicial Discipline recently reminded judicial candidates that “campaign-related social media platforms, such as Facebook, maintained by a campaign committee or others, do not insulate them from the strictures of the Code.” In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018). In that case, the Commission publicly reprimanded a former judge for an image that her campaign manager had posted on Facebook that showed the judge in her judicial robe photoshopped next to the actor Dwayne Johnson, known as the Rock. The caption read, “It just makes sense: Re-Elect Judge Heidi Almase.” Later that evening, the judge commented on the Rock post: “I’m ‘almost’ taller than him. Almost.”

The campaign did not have permission to use the Rock’s image. The judge lost the election.

The Commission found that the post improperly misled the public into believing that the Rock had endorsed the judge’s campaign and that the judge’s comment was “an improper confirmation and ratification of the earlier false Rock Post, thereby further misleading the public.”

The Commission also found that the judge had not taken reasonable measures to ensure that her campaign representatives complied with the code of the judicial conduct, providing her campaign manager and her graphic artist, “in essence, carte blanche and unsupervised access to her campaign Facebook page.” The Commission noted that the campaign management contract did not contain any restrictions on the posting of social media materials, such as obtaining prior approval from the judge and that the judge did not discuss with her campaign representatives the constraints and prohibitions of the code.

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Similarly, the Florida Supreme Court recently removed a judge from office for false and misleading statements about her opponent her campaign made in an e-mail and on a Facebook page created by an electioneering communications organization formed and administered by her campaign manager. Inquiry Concerning Santino (Florida Supreme Court October 19, 2018).

In the 2016 election, Santino was a candidate for an open judicial seat; Gregg Lerman was her opponent. Santino hired Richard Giorgio of Patriot Games, Inc. as her campaign manager.

In September 2016, a Facebook page titled, “The Truth About Gregg Lerman” was created by Taxpayers for Public Integrity, an electioneering communications organization formed and administered by Patriot Games, Inc. The header of the Facebook page stated: “Attorney Gregg Lerman has made a lot of money trying to free Palm Beach County’s worst criminals. Now he’s running for judge!” Below that was a photograph of Lerman surrounded by the words, “CHILD PORNOGRAPHY,” “DRUG TRAFFICKING,” “MURDER,” “Identity Theft,” “RAPE,” “Sexual Assault,” “Internet Solicitation of Minors,” and “PEDOPHILES.” The page also highlighted 4 high profile cases in which, it stated, Lerman “chose” to represent the defendants. For example, the page stated: “Instead of representing victims of crime, Gregg Lerman chose to represent convicted serial killer Ronald Knight who targeted gay men and brutally murdered them. Now, he’s running for Judge!”

Santino’s campaign also sent an e-mail that described Lerman’s legal practice as “limited to criminal defense—representing murderers, rapists, child molesters and other criminals.”

The Court emphasized that the code did not permit the candidate to delegate to her campaign manager the responsibility for written materials created or distributed by the campaign. The Court held that the judge’s actions “individually and through her campaign, for which she was ultimately responsible—unquestionably eroded public confidence in the judiciary.” The Court found that the campaign had “expressly stated or implied that Lerman could not be trusted ‘for laboring in an occupation that serves to breathe life and meaning into the Sixth Amendment’” and “falsely communicated to the reader that Lerman was unfit for judicial office because of the type of law he practiced, and the type of clients he represented.” The Court also concluded that the judge’s campaign statements “evidenced a bias against criminal defendants, toward whom she imputed guilt; against criminal defense attorneys, whom she implied had some character fault because they ‘choose’ to represent criminal defendants; and in favor of victims, whom she boasted that she worked to protect during her legal career.”

Noting that it has previously warned judicial candidates that serious campaign violations could warrant removal, the Court concluded:

Simply stated, Santino’s conduct does not evidence a present fitness to hold judicial office. It is “difficult to allow one guilty of such egregious conduct to retain the benefits of those violations and remain in office.” . . . We refuse to endorse a “win-at-all-costs-and-pay-the-fine-later” strategy, especially in light of our past warnings and stated intolerance for the kinds of campaign violations at issue here.

The Court explained that any sanction other than removal would send a message to judicial candidates that they may commit “egregious violations” during their campaigns and “if they win, a suspension or a fine or both will be the only result. They will be allowed to reap the benefits of their misconduct by continuing to serve the citizens of this state. This we cannot condone.”

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A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct Reporter. Part 1 was a general introduction to the topic and a discussion of issues related to judicial duties: “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases. Part 2 covered off-bench conduct: conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct. Summaries of advisory opinions and cases up-dating the 2-part article are available here.